The College Rape Overcorrection

This is the article I promised to post this morning. The quoted passage is from the second section, “2. An Overcorrection”.

We are told that one of the most dangerous places for a young woman in America today is a college campus. As President Obama said at a White House event in September, where he announced a campaign to address campus violence, “An estimated one in five women has been sexually assaulted during her college years—one in five.” (At an earlier White House event on the issue, the president declared of sexual violence, “It threatens our families, it threatens our communities; ultimately, it threatens the entire country.”) In recent weeks, Rolling Stone’s lurid account of a premeditated gang rape at the University of Virginia has made the issue of campus sexual violence front-page news. (The reporting and the allegations in the article have since been called into question, and Rolling Stone has issued a statement acknowledging that the magazine failed to properly investigate and corroborate the story.)

Sexual assault at colleges and universities is indeed a serious problem. The attention it’s receiving today—on campus, at the White House, in the media—is a direct result of the often callous and dismissive treatment of victims. For too long, women who were assaulted on campus and came forward were doubted or dismissed, and the men responsible were given a mild rebuke or none at all. Those who commit serious sexual crimes on campus must be held to account.

In recent years, young activists, many of them women angry about their treatment after reporting an assault, have created new organizations and networks in an effort to reform the way colleges handle sexual violence. They recognized they had a powerful weapon in that fight: Title IX, the federal law that protects against discrimination in education. Schools are legally required by that law to address sexual harassment and violence on campus, and these activists filed complaints with the federal government about what they describe as lax enforcement by schools. The current administration has taken up the cause—the Chronicle of Higher Education describes it as “a marquee issue for the Obama administration”—and praised these young women for spurring political action. “A new generation of student activists is effectively pressing for change,” read a statement this spring announcing new policies to address campus violence. The Department of Education has drafted new rules to address women’s safety, some of which have been enshrined into law by Congress, with more legislation likely on the way.

Unfortunately, under the worthy mandate of protecting victims of sexual assault, procedures are being put in place at colleges that presume the guilt of the accused. Colleges, encouraged by federal officials, are instituting solutions to sexual violence against women that abrogate the civil rights of men.
Schools that hold hearings to adjudicate claims of sexual misconduct allow the accuser and the accused to be accompanied by legal counsel. But as Judith Shulevitz noted in the New Republic in October, many schools ban lawyers from speaking to their clients (only notes can be passed). During these proceedings, the two parties are not supposed to question or cross examine each other, a prohibition recommended by the federal government in order to protect the accuser. And by federal requirement, students can be found guilty under the lowest standard of proof: preponderance of the evidence, meaning just a 51 percent certainty is all that’s needed for a finding that can permanently alter the life of the accused.

More than two dozen Harvard Law School professors recently wrote a statement protesting the university’s new rules for handling sexual assault claims. “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process,” they wrote. The professors note that the new rules call for a Title IX compliance officer who will be in charge of “investigation, prosecution, fact-finding, and appellate review.” Under the new system, there will be no hearing for the accused, and thus no opportunity to question witnesses and mount a defense. Harvard University, the professors wrote, is “jettisoning balance and fairness in the rush to appease certain federal administrative officials.” But to push back against Department of Education edicts means potentially putting a school’s federal funding in jeopardy, and no college, not even Harvard, the country’s richest, is willing to do that.

I am not entirely sold. The 51% thing is the preponderance of the evidence standard, which is the usual burden of proof for civil proceedings (where no one is going to jail). It seems to me that if it is more likely than not that the accused did sexually assault the victim that some action should be taken - for example, the alleged attacker needs to move to another campus for a year so the victim can graduate without seeing him every day. Again, no one is going to jail, no one is convicted of anything or has a record, it isn’t even public, because of privacy rules.

The alternative is that *nothing* happens, even though the preponderance of the evidence favors the victim.

According to the article, the allegation stays on the record after the accused is expelled and no other university or college takes him. That is not even considering whether the “judging” - on whatever standard - has been done properly. In Yoffe’s examples the officials seem to have ignored any exculpating evidence whatsoever.

According to the article, the allegation stays on the record after the accused is expelled and no other university or college takes him. That is not even considering whether the “judging” - on whatever standard - has been done properly. In Yoffe’s examples the officials seem to have ignored any exculpating evidence whatsoever.

The case I am familiar with the only thing that happened was the guy had to take time off from school (a semester, I think) while the woman graduated, and then he went back. He went on to law school, so obviously his future wasn’t too blighted. His parents did hire a good lawyer though.

Anyway, I am not saying that some of the procedures couldn’t be better - I know they could. I am saying I am in favor of the preponderance of the evidence standard. It is almost impossible to prove acquaintance rape allegations beyond a reasonable doubt - that is why they are practically never prosecuted.

The case I am familiar with the only thing that happened was the guy had to take time off from school (a semester, I think) while the woman graduated, and then he went back. He went on to law school, so obviously his future wasn’t too blighted. His parents did hire a good lawyer though.

Anyway, I am not saying that some of the procedures couldn’t be better - I know they could. I am saying I am in favor of the preponderance of the evidence standard. It is almost impossible to prove acquaintance rape allegations beyond a reasonable doubt - that is why they are practically never prosecuted.

Then how about the middle ground of “Clear and Convincing Evidence”? IMO, that would be the best standard if universities have to get involved. I say ‘if’ because rape and sexual assault really are matters for police officers, not university administrators.

Tying into the Story Sergey posted, I argue that part of the reason universities have the sort of ‘informal complaint’ system Patrick Witt describes is to keep claims of rape away from the police. Universities want to look like they’re fighting against sexual violence without actually having to admit to rapes on campus. It’s yet another variety of gaming the system, or ‘juking the stats’ as it was called on The Wire. By disposing of a complaint ‘informally’, the university can say they addressed it without actually having to investigate it.

And God Bless you for helping with that, for you truly do the Lord’s work.

Tying into the Story Sergey posted, I argue that part of the reason universities have the sort of ‘informal complaint’ system Patrick Witt describes is to keep claims of rape away from the police. Universities want to look like they’re fighting against sexual violence without actually having to admit to rapes on campus. It’s yet another variety of gaming the system, or ‘juking the stats’ as it was called on The Wire. By disposing of a complaint ‘informally’, the university can say they addressed it without actually having to investigate it.

Knowing several people who do this work at universities, I can tell you that in my experience this isn’t really true - the people who do the reporting are usually well insulated from people who would have a vested interest in “keeping the numbers down”.

My impression is that the type of counseling that was described in the UVa article and portrayed as discouraging victims from going to the police is actually something of recommended practice in such circles: the victim should be presented with an array of clearly explained options including filing criminal charges, but should not be pressured into a particular decision. Given the crappy state of the legal system, many choose not to bother.

Obviously that’s a pro-university point of view. The truth is probably somewhere in the middle.

I’m gravitating towards the view that the 51% evidence rule should be used by universities to enforce a no-contact penalty (which could mean suspension) on first offences, in parallel with whatever happens via the criminal justice system. Being clear about the rules up front places the onus on students to be pretty sure they have consent, and education on the topic can help them to grasp what that means.

Knowing several people who do this work at universities, I can tell you that in my experience this isn’t really true - the people who do the reporting are usually well insulated from people who would have a vested interest in “keeping the numbers down”.

My impression is that the type of counseling that was described in the UVa article and portrayed as discouraging victims from going to the police is actually something of recommended practice in such circles: the victim should be presented with an array of clearly explained options including filing criminal charges, but should not be pressured into a particular decision. Given the crappy state of the legal system, many choose not to bother.

Obviously that’s a pro-university point of view. The truth is probably somewhere in the middle.

I’m gravitating towards the view that the 51% evidence rule should be used by universities to enforce a no-contact penalty (which could mean suspension) on first offences, in parallel with whatever happens via the criminal justice system. Being clear about the rules up front places the onus on students to be pretty sure they have consent, and education on the topic can help them to grasp what that means.

I could see that as viable, as long as the rules for proceedings are spelled out in advance, the accused is told in advance what he is accused of having done wrong and there is a proper hearing with the presentation of testimony and evidence so the accused has a chance to clear his name.

Things can be made tolerably fair without putting victims through the wringer, but only with extensive preparation and good procedure.

As for the legal system, I’m sorry but I have to disagree in at least some cases. If anything even close to what ‘Jackie’ said had happened actually did happen to her then the police need to be involved. Because the sort of man who would instigate a gang rape is not going to be a one-time offender, and there is an overriding societal interest in apprehending such a man. So for cases where the rape was planned out in advance, I would argue the police need to be brought in unless they are incompetent, even if bringing them in causes the victim anguish. When dealing with sexual predators, “the needs of the many outweigh the needs of the one.”

I could see that as viable, as long as the rules for proceedings are spelled out in advance, the accused is told in advance what he is accused of having done wrong and there is a proper hearing with the presentation of testimony and evidence so the accused has a chance to clear his name.

Things can be made tolerably fair without putting victims through the wringer, but only with extensive preparation and good procedure.

As for the legal system, I’m sorry but I have to disagree in at least some cases. If anything even close to what ‘Jackie’ said had happened actually did happen to her then the police need to be involved. Because the sort of man who would instigate a gang rape is not going to be a one-time offender, and there is an overriding societal interest in apprehending such a man. So for cases where the rape was planned out in advance, I would argue the police need to be brought in unless they are incompetent, even if bringing them in causes the victim anguish. When dealing with sexual predators, “the needs of the many outweigh the needs of the one.”

When the prosecution and conviction rate of rapists is such that proceeding with a case is likely to actually result in taking a rapist out of society, you might be able to make the argument you’re trying to make.

When the prosecution and conviction rate of rapists is such that proceeding with a case is likely to actually result in taking a rapist out of society, you might be able to make the argument you’re trying to make.

That’s in part why I included a caveat. The first and most critical point is to have a police force that can handle rape cases and takes them seriously. In a few places this condition already exists, New York City being one of them (for all its flaws, the NYPD has made great strides in combating rape and has driven its commission down greatly. New York law has also moved to ensure rape kits are tested and the DNA of rapists is entered into the relevant databases.) Ensuring a capable police force and district attorney’s office is about all that can be done. Given the presumption of innocence in criminal law, rape cases will always be tough to prove.